July 27, 2009

Last week's federal district court ruling in Vulcan Society v. New York throwing out the written tests used to hire some of the 343 firemen who died on 9/11 should be taken to the Supreme Court posthaste, before Clarence Thomas keels over and Obama replaces him with, say, Henry Louis Gates's lawyer Charles Ogletree. (To understand the political significance of Vulcan, first read my VDARE.com column. Then, to understand the legal significance, read my blogpost below.)

Don't overlook the publicity-garnering value of the case's title: Vulcan Society. The late night talk show monologue jokes write themselves. This case could generate a huge amount of publicity -- after all, many media personalities have a self-interest in competent FDNY firemen.

Another key would be to personalize it by finding firemen who died on September 11, 2001 who wouldn't have been hired under Judge Garaufis's ruling. Personalize the case by showing that he is demeaning and dishonoring their service and sacrifice as being the product of racial discrimination.

It's time to go to the mat.

Not only does Judge Garaufis's decision self-parodyingly demonstrate the idiocy of Disparate Impact theory, but it seems to extend it beyond the EEOC's Four-Fifth's rule to demand lowered hiring standard whenever there is any disparity, no matter how nugatory, in hiring rates by race.

The question is: Who will take the case to the Supreme Court? Can we trust the Bloomberg Administration to appeal and to appeal in an aggressive fashion? After all, the DeStefano Administration in New Haven sure wasn't helpful in defending their firefighter tests, and Bloomberg is under much the same political pressures.

I suspect this shows the key, if unstated, reason that Judge Garaufis refused to let the Uniformed Firefighters Association union become a co-defendant while letting the Vulcan Society of black firefighters come into the case midway through to become lead plaintiff. (Who, you might ask, petitions to be a defendant in a lawsuit? An organization intending to make sure a strong appeal is filed.)

Garaufis likely grasped that the union was much more likely to appeal, and appeal on broad grounds, that Mayor Bloomberg, so if the Judge could keep the union out of the case, he could make up any absurd ruling he wanted with less risk that the political will would exist on the losing side to have him overturned.

Can any lawyers out there explain the necessary strategy for getting Vulcan Society to the Supreme Court?

14 comments:

ben tillman
said...

Garaufis likely grasped that the union was much more likely to appeal, and appeal on broad grounds, that Mayor Bloomberg, so if the Judge could keep the union out of the case, he could make up any absurd ruling he wanted with less risk that the political will would exist on the losing side to have him overturned.

The ruling's not binding on non-parties, so the union and the whites who are being discriminated against can file a new lawsuit once this court's ruling is implemented. And they should win, though I won't hold my breath.

Was there disparate impact among the 343 firefighters killed on 9/11? What is the percentage of white firefighters in the NYFD and what is the percentage of all firefighters that died on 9/11? Was there a disparate number of white firefighters that died on 9/11?

It is quite possible that the most competent firefighters were sent into the World Trade Center that day.

It should be a slam-dunk to show that there was a disparate impact on male firefighters that day since zero female firefighters died on 9/11. Should the court order only female firefighters into burning buildings until this has been rectified?

"The ruling's not binding on non-parties, so the union and the whites who are being discriminated against can file a new lawsuit once this court's ruling is implemented."

The white firefighters don't have a Ricci-like claim under Title 7 for disparate treatment because the court in fact held the city liable for disparate impact. They would have to sue under the 14th Amendment claiming that the city in implementing the district court's remedy violated their rights to Equal Protection. So far so good -- overturning disparate impact under 14A is what we really want to do and Ricci did not do, as Justice Scalia observed.

But the chances of success would depend on the remedy, which the district court hasn't decided yet. If the district court grants what are effectively quotas that the Vulcan Society is asking for ("appoint entry-level firefighters from among qualified black applicants in sufficient numbers to offset the historic pattern and practice of discrimination against blacks in testing and appointment to that position”) there is a good 14A case, but not for the other remedies (and I don't think any of the parties, much less the court, will be stupid enough this time to throw out test results or promotions already granted under the tests -- otherwise that remedy too would be a promising 14A claim).

This seems rather awkward, suing to overturn the remedy in another case, because that remedy injures and violates the rights of some non-parties to that case, and there may be procedural barriers to this I haven't thought of, but I can't think of a better approach. (Collateral estoppel, a.k.a. issue preclusion, if I am reading it correctly, seems to work only in the new plaintiff's favor if at all).

This approach would invite Kennedy and Roberts to split the baby -- throw out egregious quota-like remedies under disparate impact as violating 14A but not throw out the disparate impact provision itself. A greater likelihood of a lesser victory.

Say Judge Garaufis sets the damages to be paid out to blacks and Hispanics who did poorly on the test at $20 million, a number that has been mentioned in the press. Then it's Mayor Bloomberg's call whether to pony up or appeal?

So, the City of New York would have standing to appeal Garaufis's decision all the way to the Supreme Court. But, Bloomberg, who testified for Sotomayor, might well cave in and pay the $20 million out of the taxpayer's money.

But for anybody else other than government bodies answerable to Bloomberg to appeal would require some creative legal minds?

Still, pressure can be brought on Bloomberg, by say the New York Post and the Manhattan Institute, if they have the guts to crusade on the issue.

Steve, I'm assuming the city will cave, and thus (per Ben Tillman's suggestion) exploring the possibility of a separate lawsuit (technically not an appeal) to overturn the remedy in Vulcan as unconstitutional under 14A. I doubt the damages payout you describe can be overturned by this second lawsuit as it doesn't directly harm any firefighters. There has to be a clear case of a particular firefighter being denied a promotion or raise in favor of a NAM because of the remedy.

I don't know NYC politics so I don't know whether it's worth lobbying the city to appeal. Certainly you point out ways to make that lobbying effective -- 9/11 is a powerful memory.

Legally the best approach to overturning disparate impact under 14A is probably to find another such lawsuit (there are likely very many to choose from) from a government more motivated to seriously contest the issue than I suspect NYC is, or where the district judge has let the union join as a defendant.

I said overturning egregious remedies would be a lesser victory than overturning disparate impact itself, but maybe not. The worst parts of civil rights jurisprudence in its heyday were fanatical injunctions like forced busing and integration quotas that tried to prevent white flight. These precedents are legally vulnerable in a conservative court, I suspect, and one can imagine broad ways of overturning a quota remedy here that also would effectively overturn many old forced integration precedents.

The city will probably not appeal, unless the court does something insane in the remedy phase. In a sense, the city caved on the merits when it introduced a new exam and entry process in January 2007 -- before the suit was even filed.

It was like a lot of public interest litigation, over before it began. I remember reading Goldberg v. Kelly (1970) in law school, one of the famous "due process" cases, which held that you had to have a hearing before you could cut off someone's welfare benefits. It was sort of disorienting to read in my Cover Fiss & Resnick procedure book, partly because legal documents are so thoroughly weird-looking to non-lawyers, partly because it was evident that New York City stopped fighting and had instituted the hearings the plaintiffs wanted long before the Supreme Court got the case. But it was clear that Cover, Fiss & Resnick considered this a glorious victory anyway...

In Ricci, the white firefighters could sue because they were denied something. But the current case involves an entry exam. Whites who are already firefighters have not been denied anything by a new exam -- at least, nothing the law gives them a right to sue over. A proper plaintiff would have to be a white applicant who didn't get in because of the new system -- a firefighter equivalent of Hopwood or Grutter.

What about the thousands of white applicants who did not score high enough to be appointed to the FDNY. I guess they don't count because they have white skin. They should be hiring a lawyer and suing for their rights as American citizens, F the Vulcans and their racist views.

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